Con Law practice questions

The State of Floribama experienced a large influx of retirees, due in large part to its mild winters and in part to the generous health benefits that the state historically provided to its elderly residents who fell below the federal poverty line. The state's Office of Management and Budget determined that the influx of retirees would bankrupt the state's healthcare benefit fund within five years. To preserve the fund and to ensure the health of it citizens, Floribama revised its healthcare statute to make persons ineligible for coverage until they have lived in the state for at least one year. Ada Harris, an elderly retiree living on a fixed income, moved to Floribama three months ago and was denied healthcare benefits because she had not lived in the state for one year. If Ms. Harris files suit in federal court challenging the constitutionality of the Floribama statute, is she likely to prevail? (A) Ms. Harris is likely to prevail because the requirement improperly burdens the right of interstate travel in violation of the Equal Protection Clause of the Fourteenth Amendment. (B) Ms. Harris is likely to prevail because the requirement deprives some retirees of certain privileges and immunities in violation of the Privileges and Immunities Clause in Article IV. (C) Floribama is likely to prevail because it has a compelling interest in maintaining the fiscal integrity of its healthcare fund. (D) Floribama is likely to prevail the states do not have a constitutional duty to provide healthcare benefits to retirees even if they fall below the federal poverty line.

The correct answer is (A) (The court will likely find that the one-year residency requirement is unconstitutional because it burdens the right to travel. An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into a state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment's Privileges or Immunities Clause). When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement would normally be subject to the strict scrutiny test and usually will be found not to have satisfied the test. One such requirement that has been invalidated on this basis is a one-year waiting period for state-subsidized medical care, such as the one here. See Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974).)

Under Moregon state law, a drug company that makes a false factual claim about a prescription drug is manufactures and sells is strictly liable in tort to any user of the drug. Zax Pharmaceuticals manufactures a drug called Globizam. In all its advertisements for the drug, Zax claimed that it was safe and efficacious for use in children. Seven-year-old Jena Malone is seriously harmed after taking Globizam as prescribed by her physician. Her parents file suit on her behalf seeking to hold Zax strictly liable for their daughter's injuries. At the time Jena Malone took Globizam, the available medical studies supported Zax's claim that Globizam was safe for children; however later research proved that Globizam was actually harmful to children. Zax has moved to dismiss the lawsuit on First Amendment grounds. Should the court grant the motion to dismiss? (A) The motion to dismiss should be denied because false and misleading commercial speech is not protected by the First Amendment. (B) The motion to dismiss should be denied because drug manufacturers are subject to extensive health and safety regulation by the U.S. Food and Drug Administration. (C) The motion to dismiss should be granted because liability for false statements cannot be imposed without a showing of actual malice. . (D) The motion to dismiss should be granted because Zax's claims about the drug are a matter of public concern.

The correct answer is (A) because it correctly states one of the limits that may be constitutionally imposed on commercial speech. Zax's claim that Globizam was safe for children was made as part of speech promoting the sale of a product. Therefore, the claim constituted commercial speech. Commercial speech is entitled to somewhat less First Amendment protection than core political speech. One of the limitations is that commercial speech that is misleading or deceptive is not entitled to any First Amendment protection. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 U.S. 557 (1980) [1434]. Because there is ample evidence that Globizam in fact harms children, Zax's advertisements were deceptive speech that is not entitled to First Amendment protection.

An international trade dispute erupted between the United States and the Duchy of Grand Fenwick over wineries in states of Washington and Oregon who were falsely marketing their wine as being produced in Grand Fenwick. The United States Congress declared war against Grand Fenwick after its armed forces staged an attack against Seattle. Congress also passed a statute making it a crime to make public statements in support of Grand Fenwick and against the United States. Tully Bascombe, a United States citizen, subsequently spoke out against the war at a rally in front of the federal courthouse in Seattle. During his speech, Mr. Bascombe urged people to ?smash the windows of the courthouse just like the U.S. troops are doing in Grand Fenwick. Several members of the frenzied crowd did just as Mr. Bascombe urged. Mr. Bascombe was immediately arrested and charged with violating the statute. Can Mr. Bascombe successfully defend by asserting that the statute violates his First Amendment rights? (A) Mr. Bascombe can successfully challenge the statute because it is substantially overbroad. (B) Mr. Bascombe can successfully challenge the statute because his speech involved political speech. (C) Mr. Bascombe will not be successful because his speech incited imminent lawless action. (D) Mr. Bascombe will not be successful because the ongoing war constitutes a compelling government interest that justifies the statute.

The correct answer is (A)(Mr. Bascombe may successfully defend on overbreadth grounds. If a regulation of speech punishes a substantial amount of protected speech, judge in relation to the regulation's plainly legitimate application, the regulation is facially invalid and cannot be enforced against anyone - not even against a person who is engaging in activity that is not constitutionally protected. This statute is substantially overbroad because it makes any public statement in support of Grand Fenwick at crime.)

The State of Narizona enacted a law stating that only United States citizens were eligible to serve as jurors in Narisona's state courts. Asta Twelvetrees, a Canadian citizen who has been lawfully residing in Narizona for many years, was summoned for jury duty in state court. Her name was selected from a list of potential jurors compiled from a comprehensive list of local residents. When Ms. Twelvetrees was placed on the venire, she was disqualified from jury service solely because she was not a United States citizen. Ms. Twelvetrees filed suit in federal court seeking a declaration that the Narizona statute is unconstitutional. Who should prevail? (A) Narizona should prevail because a state may limit to United States citizens functions that are an integral part of the process of self-government. (B) Narizona because jury service is a privilege, not a right, and therefore it is not a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. (C) Ms. Twelvetrees because the Constitution gives Congress plenary power to make classifications with respect to aliens. (D) Ms. Twelvetrees because Narizona has not articulated a legitimate reason for prohibiting lawful resident aliens from serving as jurors in its state courts.

The correct answer is (A). (Narizona should prevail because its law excluding aliens from jury service is rationally related to its legitimate interest in ensuring that only citizens perform functions that are central to self-government. Although strict scrutiny generally applies to state laws that discriminate against aliens, rational basis scrutiny is appropriate when alienage classifications restrict the right to participate in functions that are central to self-government, such as voting, running for office, or serving on a jury.)

The State of Franklin passed an Act designed to secure what the legislature characterized at "founding societal values." The Preamble that precedes the Act's three sections states: Life, Liberty, and the Pursuit of Happiness are inalienable rights. The State of Franklin embraces the premises that life begins at conception, that the traditional family unit should be preserved, and that the traditional family unit is protected against alternative models of group living. The first section of the Act provides that abortions can be performed only when the biological father has consented and the woman has received 30 days of counseling to assure that her decision is informed. The second section of the Act defines an approved family unit as one that includes a married mother and father, direct offsprings, and grandparents. The third section of the Act provides that marriage is a privilege that can be granted or withheld in the state's discretion. Lenina Crowne and Bernard Marx have lived in the same household for ten years but are not married. Mr. Marx has adopted Ms. Crowne's 12-year-old daughter, Fanny. The State of Franklin has refused to enroll Fanny in public school because she is not living in an approved family unit. Ms. Crowne and Mr. Marx have filed suit in federal court asserting, among other things that the Act's Preamble violates their fundamental rights. How should the federal court address the constitutional challenge to the Preamble? (A) The Preamble does not impose restrictions upon any constitutionally protected rights. (B) The statement in the Preamble that "life begins with conception" does not interfere with a woman's fundamental rights because the Constitution no longer recognizes the right to an abortion. (C) The Preamble's emphasis on "traditional family unit" interferes with their constitutionally protected right to have and raise a family free from unnecessary government interference. (D) The effect of the Preamble's endorsement of the "traditional family unit" interferes with their daughter's right to an education.

The correct answer is (A). (While the Preamble articulates the State of Franklin's specific and precise value judgments with respect to abortion and family life, it does not impose restrictions upon any protected rights. The Constitution does not prevent states from expressing its policy preferences in this manner.)

Upon completion of a major expansion project, the board of the Gatlin, Nebraska Public Library adopted a usage policy for the new meeting room that had been added to the facility. To alleviate the scheduling burden on the library staff if the meeting room were open to all groups, the policy provided that the meeting room was to be used only for ?library purposes" by the library staff, the library board, or groups affiliated with the library, such as the library's teen advisory group or the volunteer ?Friends of the Library" group. The Association of American Indian Affairs (AAIA), a group that promotes the political interests of Native Americans in and around Gatlin, requested the use of the meeting room for an information meeting that would be open to the public. Although no other event was scheduled for the meeting room at the requested time, Burt Stanton, the library director, declined the AAIA's request, citing the meeting room policy adopted by the library's board. AAIA filed suit in federal court challenging the library's policy and seeking access to the meeting room. How is the court likely to rule? (A) The library's policy is valid because limiting the meeting room's use to library purposes is reasonably related to a legitimate government purpose. (B) The library's policy is valid because limiting the meeting room's use to library purposes is narrowly tailored to serve a significant government interest. (C) The library's policy violates the First Amendment because limiting the meeting room's use to library purposes is restricting speech based on its content. (D) The library's policy violates the First Amendment unless there are alternative facilities in the area available for groups to hold meetings.

The correct answer is (A). The court is likely to rule that the library board's policy because it is reasonably related to a legitimate government interest. The library board, as a government body, may reasonably regulate speech-related conduct in public forums through reasonable time, place, and manner regulations. Some public property, such as streets, sidewalks, and parks, is so historically associated with the exercise of First Amendment rights that is categorized as a traditional public forum. Other property may become a designated public forum when the government, by policy or practice, opens it for expressive activity. However, most locations, other than streets, sidewalks, or parks, are not public forums and may be reserved by the government for their intended activity. When a limited or non-public forum is involved, government regulations designed to reserve the forum for its intended use will be upheld if they are (1) viewpoint neutral and (2) reasonably related to the intended purpose of the non-public forum (which must be a legitimate government purpose. Here, the library meeting room is not a traditional public forum, and the library board has not designated it as a public forum because its use is limited to library groups for library purposes. Accordingly, the court would likely characterize the meeting room either as a limited public forum or a non-public forum. The board's policy is viewpoint neutral - it does not undertake to limit the presentation of issues to only one viewpoint, and it is rationally related to the legitimate objective of alleviating the staff's scheduling burden. The court will probably uphold the library's policy.

Alex DeLarge owns the Korova Milk Container Manufacturing Co. located in the State of Orange. He objected to the enactment of a new milk packaging law enacted by the Orange legislature and sought to focus the public's attention on the new law in order to have it repealed. On a weekday at 12:00 noon, Mr. DeLarge delivered an excited, animated, and loud harangue on the steps of the Orange Capitol in front of the main entryway. An audience of approximately 200 onlookers, who gathered on the Capitol steps, heckled Mr. DeLarge and laughed as he delivered his tirade. Mr. DeLarge repeatedly stated, gesturing expressively and making faces, that ?the damned milk packaging law is stupid" and that ?I will strangle every one of those damned legislators I can get hold of because this law they created proves they are too dumb to live." After approximately fifteen minutes, Mr. DeLarge stopped speaking, and the amused crowd disbursed. Three Orange statutes are relevant to this event. The first statute prohibits ?all speech making, picketing, and public gatherings of any sort on the Capitol steps in front of the main entry way between 7:45 a.m. - 8:15 a.m., 11:45 a.m. - 12:15 p.m., 12:45 p.m. - 1:15 p.m., and4:45 p.m. - 5:15 p.m. on Capitol working days." If Mr. DeLarge is prosecuted under the ?Capitol steps" statute and defends on constitutional grounds, which of the following best describes the proper burden of proof? (A) Orange will be required to prove that the statute is not reasonably related to a legitimate government purpose. (B) Orange will be required to prove that the statute furthers an important or substantial government interest and that the statute is no more restrictive than necessary to further that interest. (C) Mr. DeLarge will be required to prove that its statute is reasonably related to a legitimate government purpose. (D) Mr. DeLarge will be required to prove that it had a compelling need for this statute and that there were no less restrictive means by which it could satisfy that need.

The correct answer is (B) because it correctly identifies both the level of the burden of proof and the party on whom the burden is placed. Here, the law limits free speech in a public place - the Capitol steps. The right of free speech in a public forum is not absolute; it can be regulated by, among other things, valid time, place, and manner regulations. To pass muster under the First Amendment, the regulation must (1) be content neutral, (2) further an important or significant government interest, and (3) be no greater than necessary to further that interest.

A statute of the State of Texona prohibits any retailer of books, magazines, photographs, pictures, or posters from ?publically displaying or selling to any person any material that may be harmful to minors because of the violent or sexually explicit nature of its pictorial content." Violation of the statute is a misdemeanor. The Circus of Books is a store that displays publicly and sells magazines containing violent and sexually explicit photographs. Barry Mason, the owner of the store, is prosecuted under the statute. In his defense in a Texona trial court, the argument that would be Mr. Mason's best defense is that the statute violates the (A) First Amendment because a state may not prohibit the sale of violent or sexually explicit material in the absence of proof that the material is utterly without any redeeming value in the marketplace of ideas. (B) First Amendment because the statute is excessively vague and overbroad. (C) Equal Protection Clause because the statute irrationally treats violent and sexually explicit material that is pictorial differently from such material that is composed wholly of printed words. (D) Equal Protection Clause because the statute irrationally distinguishes between violent and sexually explicit pictorial material that may harm minors and such material that may harm only adults.

The correct answer is (B) because the statute bars some protected conduct and leaves the public uncertain about what conduct is and is not forbidden. This statute is both overbroad and vague. It is overbroad because it covers or appears to cover a substantial amount of conduct protected by the First Amendment. The statute denies to adults massive amounts of non-obscene sexually explicit material on the ground that these materials may be harmful to minors. The statute is vague because it does not define term ?sexually explicit nature" or the term ?harmful." A reader will be left to guess just how great a degree of sexual explicitness or how great the likelihood of harm will trigger the application of the statute.

The Town of Mill Valley has a permanent display of passages from various political and religious documents on plaques along the side of its municipal building. The plaques include the Declaration of Independence, the Ten Commandments, and the lyrics to ?The Star Spangled Banner." Over the years, the town has added other plaques donated by various civic groups. The Hanuman Society, a religious organization that worships the planet Mars, has donated a plaque to the town containing the Society's basic creed and has requested that the plaque be displayed along with the other plaques on the side of the municipal building. When the town declined the gift and refused to display the plaque, the Society filed suit in federal court asserting that the Town violated its First Amendment rights by refusing to include the plaque with the others that had been donated over the years. What is the most likely outcome of this claim? (A) The court will rule in Mill Valley's favor because the religious basis of the Hanuman Society's plaque violates the Establishment Clause. (B) The court will rule in Mill Valley's favor because the plaque would constitute government speech, and the town may pick and choose among the messages it desires to convey. (C) The court will rule in the Society's favor because Mill Valley has allowed other religious messages to be displayed. (D) Unless Mill Valley has a compelling reason to refuse to accept and display the plaque, the court will rule in the Society's favor because Mill Valley's decision was based on the content of the plaque.

The correct answer is (B)(A permanent display on a government building constitutes government speech, even if the display was originally donated by a private entity. In the absence of some other constitutional constraint, the government is generally free to choose which messages it will and will not convey.)

As part of its worldwide campaign to combat AIDS, Congress appropriated billions of dollars to provide grants to non-governmental organizations ("NGOs") involved in the fight against HIV/AIDS. NGOs qualify to receive these funds only if they agree not to use the funds to "encourage, promote, or tolerate prostitution" and if they sign a written pledge opposing prostitution and refusing to "encourage, promote, or tolerate it as a means of combating HIV/AIDS." Pathfinder International, an NGO engaged in combating HIV/AIDS overseas, is willing to comply with the first stipulation but not the second. It filed suit in federal court arguing that the second stipulation violates its speech rights under the First Amendment. How will the federal courts decide this claim? (A) The court should sustain Pathfinder's claim. If Congress decides that a group merits funding under objective, non-speech related criteria, it cannot condition that funding on positions the group takes, even when it uses federal funding to adopt or implement those positions. (B) The court should sustain Pathfinder's claim. While Congress may insist that its funding be used or not used in particular ways, it cannot require recipients to take positions on issues when the recipient does not use federal funding to adopt or implement those positions. (C) The court should uphold the second funding stipulation because Congress, exercising its broad discretion under the Spending Clause, may require an ideological commitment relevant to the purpose of the funded program. (D) The court should uphold the second funding stipulation because Congress, in the exercise of its discretion, may use an applicant's position on a given policy issue as a funding criterion.

The correct answer is (B)(Because it most accurately reflects the results and reasoning in Agency for International Development v. Alliance for Open Society International, 570 U.S. 205 (2013) [1306]. The Court stated that the government may not deny a benefit to a person on a basis that infringes on his constitutionally protected freedom of speech and that in some cases, a condition on funding can impose an unconstitutional burden on First Amendment rights. The Court decided that the stipulation requiring grant recipients to explicitly agree with the government's policy to oppose prostitution and sex trafficking was an unconstitutional restriction on the recipient's freedom of speech.)

Juno MacGuff is facing an unplanned pregnancy. She lives in Minnesota where a woman's right to terminate her pregnancy before fetal viability is protected by the Constitution of Minnesota. Ms. MacGuff has decided to end her pregnancy. She has opted for a surgical procedure because she is not far along and because she other health conditions that prevent the safe use of Mifepristone and Misoprostol. While her physician, Dr. Lea Buxton, can safely perform the procedure at her clinic, a new federal statute enacted following the Dobbs decision that physicians performing procedures to terminate a woman's pregnancy must have admitting privileges at a hospital within thirty miles of their clinic and their clinic must meet the standards to qualify as an ambulatory surgical center. Dr. Buxton cannot satisfy either requirement, and the nearest clinic meeting the statutory requirements is six hours away. Accordingly, Ms. MacGuff will be forced to take unpaid leave from her employment to find another healthcare provider who will be available to perform the procedure at the remote clinic. Ms. MacGuff has filed suit in federal court challenging the constitutionality of the federal "admitting privileges" and "surgical center" requirements. Under current legal standards, which of the following is the most probable burden of persuasion: (A) Ms. MacGuff has the burden of persuading the court that the "admitting privileges" and "surgical center" requirements place an undue burden on her right to terminate her pregnancy under Minnesota law. (B) Ms. MacGuff has the burden of persuading the court that the "admitting privileges" and "surgical center" requirements lack any rational basis. (C) Minnesota has the burden of persuading the court that its "admitting privileges" and "surgical center" requirements serve its compelling interests in protecting the health of the mother and maintaining the integrity of the medical profession. (D) Minnesota has the burden of persuading the court that its ?admitting privileges" and ?surgical center requirements" do not unduly burden Ms. MacGuff's right to terminate her pregnancy.

The correct answer is (B)(In Dobbs v. Jackson Women's Health Org., 597 U.S. ___, 142 S. Ct. 228 (2022), the Court decided that the United States Constitution does not recognize the right to terminate a pregnancy and that restrictions on a woman's decision to terminate her pregnancy should be subjected to rational basis review in the same way that other health and safety measures are reviewed.)

To assure that all children in the state receive an appropriate education, the Niowa state legislature enacted a statute requiring that all children under the age of 16 residing in the state must attend public school. Al and Peggy Bundy sought advice from an attorney because they believed the statute violated their fundamental right to oversee their daughter Kelly's education. They consulted Beth Penza, Esq. who informed them that the United States Constitution contains an express right of privacy that provides parents the right to choose the manner in which their children are educated and that the Niowa statute could be successfully challenged on that basis. Was Ms. Penza's advice correct? (A) The advice was not correct because parents do not have a fundamental right to choose the manner in which their children are educated. (B) The advice is not correct because the Constitution does not expressly protect the right to privacy. (C) The advice is correct because parents have a fundamental right to choose the manner in which their children are educated. (D) The advice is correct because the Constitution contains an express right to privacy.

The correct answer is (B). (Although the Constitution does not expressly protect the right to privacy, the Court has recognized that many fundamental personal and family rights arise from a non-textual right to privacy. While the Court has not recognized a fundamental right to education, it has recognized that parents have a fundamental right to choose the manner in which their children are educated.)

The State of Misconsin's pension program provides supplemental state pension benefits to surviving spouses and children of state employees. The program provides that when the spouse remarried, that spouse's benefits would be gradually terminated based on a statutory formula. Because of statistics demonstrating past disparities between the household income levels of male surviving spouses and female surviving spouses, the program uses different formulas for the termination schedule depending on whether the surviving spouse was male or female. Warren Schmidt, a widower of a Misconsin state employee, was informed after he remarried that his pension benefits would be terminated in 90 days, according to the applicable formula. Upon learning that a similarly situated widow would have continued receiving pension benefits for six months after remarrying. Mr. Schmidt filed suit in federal court, alleging that Misconsin's program is unconstitutional because it is discriminatory and because it unfairly burdens his right to marry. Which of the following best states the burden of persuasion in this case? (A) Misconsin must demonstrate that the program is narrowly tailored to achieve a compelling government interest. (B) Misconsin must demonstrate that the program is substantially related to an important government interest. (C) Mr. Schmidt must demonstrate that the program is not substantially related to an important government interest. (D) Mr. Schmidt must demonstrate that the program in not rationally related to a legitimate public interest.

The correct answer is (B). (Misconsin has the burden of proving that its program is substantially related to an important government interest. When analyzing government action based on gender, the courts will apply an intermediate standard of review and invalidate the legislation unless it is substantially related to an important government interest. Because the formula used to calculate termination of pension benefits depended on whether the surviving spouse was male or female, the legislation discriminates on the basis of gender. Thus, intermediate scrutiny will be applied.)

In the State of Orrington, the State's medical licensing authority decided that certain types of advanced diagnostic medical technologies, which provided a significant source of revenue, could be located only in hospitals. Many other states allowed the same advanced diagnostic technologies to be made available at ?diagnostic centers" that were not affiliated with a hospital. A group of physicians in Orrington announced its plan to immediately open a diagnostic center that was not affiliated with a hospital that would employ these technologies. The Orrington Hospital Association argued to the Orrington legislature that only hospitals could reliably use and maintain these advanced diagnostic medical technologies. In response, the legislature enacted a law prohibiting opening and operating diagnostic centers in Orrington that were not affiliated with a hospital. The group of physicians filed suit in the United States District Court challenging the constitutionality of this new state law. What action should the District Court take? (A) The District Court should uphold the law because the provision of medical services is traditionally a matter of legitimate state concern that the states have broad authority to regulate. (B) The District Court should uphold the law because the legislature could rationally believe that diagnostic centers not affiliated with hospitals would be less reliable than hospitals. (C) The District Court should invalidate the law because it imposes an undue burden on access to medical services in Orrington. (D) The District Court should dismiss the physicians' suit without reaching the merits because the suit is not ripe.

The correct answer is (B). (The Orrington law will be judged using rational basis review unless it falls into on the categories that require heightened review, such as discrimination based on race or gender or discrimination that infringes on fundamental constitutional rights. Because the challenged law is an economic regulation that does not fall into any of these categories, it will be upheld if it is rationally related to a legitimate state interest. It is possible that the Orrington legislature rationally believed that the law would be in the best interests of the population's health to have this restriction.)

Following an extensive study, the United States Department of Homeland Security issued a report demonstrating that terrorist attacks involving commercial airlines were perpetrated exclusively by individuals of one particular race. In response, Congress enacted a statute imposing stringent new airport and airline security measures only on individuals of that race seeking to board airplanes taking off or landing in the United States. Which of the following provides the best ground for challenging the constitutionality of this statute? (A) The Commerce Clause in U.S. Const. Art. I, § 8, cl.3. (B) The Due Process Clause of the Fifth Amendment. (C) The Privileges and Immunities Clause in U.S. Const. Art. IV, § 2. (D) The Privileges or Immunities Clause in U.S. Const. Amend XIV, § 1.

The correct answer is (B). (This question underscores the manner in which equal protection principles apply to the federal government. In Boling v. Sharpe, 347 U.S. 497 (1954) [683], the Court held that the equal protection principles apply to the federal government through the Due Process Clause of the Fourteenth Amendment. The new security measures in this question presumptively violate equal protection because they contain a racial classification - the new measures apply only to individuals of one race. The Court would, therefore, uphold the measures only if the government could prove that they are necessary to serve a compelling public interest which cannot be protected in a less discriminatory way. Satisfying this standard is extremely difficult, and it would be very unlikely that the government could satisfy it here.)

Congress enacted legislation for the stated purpose of improving computer literacy among children. To implement this legislation, Congress appropriated funds to permit public school teachers who had been certified by state school districts as remedial computer instructors to provide supplemental computer instruction to any students in either public or private schools who did not have access to computer resources. To help ensure content neutrality, the statute required the instructors coming to private schools to use the laptop computers supplied by the public school districts which contained the programs that the instructors used for the same purpose in the public schools. Most of the private schools covered by the statute are religiously affiliated schools. A group of taxpayers filed suit in federal court asserting that the federal funding of remedial computer instructors for religiously affiliated private schools violated the Establishment Clause of the First Amendment. How should the District Court rule? (A) The program is constitutional because the legislation is narrowly tailored to promote a compelling government interest. (B) The program is constitutional because the legislation defines the context in which the instruction can be provided in private schools in a way that will avoid excessive entanglement with religion. (C) The program is unconstitutional because the appropriation's primary effect advances religion in violation of the Establishment Clause. (D) The program is unconstitutional because the court will presume that any instruction provided on the premises of a religiously affiliated school will be influenced by religion.

The correct answer is (B). Programs of aid to religiously affiliated grade schools and high schools are subject to the two-part test articulated in Agostini v. Felton, 521 U.S. 203 (1997) [1791]: (1) does the statute have a secular purpose and (2) is the statute's primary effect advance or inhibit religion? To evaluate a statute's effect, courts must consider: whether the statute results in governmental indoctrination; whether the statute defines its recipients by reference to religion; and whether the statute creates an excessive entanglement. The statute in this question establishes a religiously neutral program that funds a supplemental service for schools and offers remedial education services to all disadvantaged children at their schools regardless of whether they choose to attend public or private schools.

St. Canard is a city in the State of Calisota. The Calisota Supreme Court struck down a St. Canard ordinance that gave churches the power over the grant of liquor licenses for businesses with a quarter mile of the church. The court noted that even if the ordinance were not a violation of the First Amendment's Establishment Clause, it clearly violated the provision in the Calisota constitution requiring separation of church and state because it delegated government authority to churches. The opinion also harshly criticized the St. Canard City Council for passing an ordinance that was clearly a violation of state law. In response to the court's decision and to avoid future criticism, the City Counsel passed an ordinance prohibiting any cleric from sitting on any of St. Canard's public boards. The Reverend Paul McDaniel who was currently a member of the St. Canard School Board filed suit in federal court challenging the constitutionality of this ordinance. How should the federal court rule? (A) The court should hold that the ordinance is unconstitutional because its passage violated Reverend McDaniel's right to procedural due process. (B) The court should hold that the ordinance is unconstitutional because it violates the Free Exercise Clause. (C) The court should uphold the ordinance because it has a secular purpose, and it does not promote excessive entanglement between government and religion. (D) The court should uphold the ordinance because the Calisota Supreme Court's decision was based on adequate and independent state grounds.

The correct answer is (B). The Free Exercise Clause generally prohibits government from acting in a way that interferes with the free exercise of religion. The United States Supreme Court has found that the Free Exercise Clause provides almost absolute protection for religious belief. Here St. Canard is prohibiting clerics from serving on public boards. Essentially, the ordinance takes away a right of citizenship merely because a person has chosen to become a religious cleric. This sort of punishment for religious belief is prohibited, either absolutely or at least unless the discrimination is necessary to achieve a compelling government interest. See McDaniel v. Paty, 435 U.S. 618 (1978). No such compelling government interest appears in this question. Although the Calisota Supreme Court found that St. Canard could not delegate its authority regarding liquor licenses to churches and complying with that decision could be deemed a compelling government interest, the replacement ordinance is not necessary to achieving that interest.

For decades, the City of Mayberry funded its sewer projects by apportioning the project's cost equally among all the lots abutting the project. Lot owners had the option of paying their assessment in a lump sum or in small installments over time. The Mount Airy Neighborhood Sewer project involved 180 abutting lots. Forty of the lot owners affected by the project opted to pay their assessment in full; while the remaining 140 lot owners elected to pay by installment. Mayberry later decided to abandon this funding model and to fund all future sewer projects by issuing bonds. As part of this new approach and in an effort to save administrative costs, Mayberry forgave the remaining amounts owed by the owners of lots in the Mount Airy neighborhood who had elected to pay their assessments in installments. The city did not offer to refund to those lot owners who had paid their assessments in full. George Lindsey and the other Mount Airy lot owners who had paid their assessments in full filed suit in the United States District Court asserting that Mayberry's refusal to provide an equivalent refund to them was unconstitutional. How should the District Court rule? (A) The District Court should decide that Mayberry's failure to provide the lot owners a refund was unconstitutional because it deprived them of property (their payment) without due process. (B) The District Court should find in favor of Mr. Lindsey and the other Mount Airy lot owners because Mayberry failed to demonstrate that it had a rational basis for denying them a refund while relieving the other lot owners of their obligation to pay the balance of their assessments. (C) The District Court should dismiss the lawsuit filed by Mr. Lindsey and the other lot owners who paid their assessment in full because Mayberry's action furthers a proper legislative purpose. (D) The District Court should dismiss the lawsuit filed by Mr. Lindsey and the other lot owners who paid their assessments in full because Mayberry had not discriminated against them.

The correct answer is (C) (Mayberry's decision not to offer a refund to the paid-in-full lot owners is subject to rational basis scrutiny because it does not involve a suspect or quasi- suspect classification and does not implicate a fundamental right. Accordingly, the courts will uphold the decision if there is any rational basis to support it. The city could justify its choice as a cost-saving measure because the debt forgiveness will likely save it the administrative cost of policing these relative small debts. In other words, the city could rationally conclude that the cost of collection and administration no longer justified whatever incremental benefit it might derive from collecting these small debts. With regard to the city's failure to offer an equivalent refund to the paid-in-full lot owners, Mayberry could argue that offering them a refund would actually add more administrative costs to its effort to transition to a new funding model. This question is patterned after Armour v. City of Indianapolis, 566U.S. 673 (2012).)

An ordinance of the City of Bedford Falls prohibits the location of "adult theaters and bookstores" (theaters and bookstores presenting sexually explicit performances or materials) in residential or commercial zones within the city. The ordinance was intended to protect surrounding property from the likely adverse secondary effects of such establishments. " Adult theaters and bookstores" are freely permitted in the areas of the city zoned industrial, where those adverse secondary effects are not as likely. Henry Potter applied for a permit to open an adult theater and books in a building he owns in an area zoned commercial. After the city denied his application, Mr. Potter filed suit in federal court challenging the constitutionality of the zoning ordinance. Which of the following statements regarding the constitutionality of the Bedford Falls zoning ordinance is most accurate? (A) The ordinance is invalid because a city may not enforce zoning regulations that deprive potential operators of adult theaters and bookstores of their freedom to choose the location of their businesses. (B) The ordinance is invalid because a city may not zone property in a manner calculated to protect property from the likely secondary effects of adult theaters and bookstores. (C) The ordinance is valid because a city may enforce this type of time, place, and manner regulation on speech-related businesses as long as this type of regulation is designed to serve a substantial governmental interest and does not unreasonably limit alternative avenues of communication. (D) The ordinance is valid because a city may enforce zoning restrictions on speech-related businesses to ensure that the messages they disseminate are acceptable to the residents of adjacent property.

The correct answer is (C) The Court has repeatedly held that even if a city is using its zoning powers to limit or prohibit a speech-related activity, the regulation is acceptable if the city is reasonably targeting the secondary effects of that speech (i.e., crime or lower property values) rather than targeting the expressive content of that speech. Because the government is targeting the secondary effects rather than the message, the regulation will be evaluated based on the test for content-neutral time, place and manner regulations which, as this choice suggests, make such regulations valid as long as they are designed to advance a substantial government interest and do not unreasonably limit alternative avenues of expression. Because the city's interest in preventing blight is substantial and because adult uses are permitted in alternative places (areas zoning industrial), these requirements are easily satisfied.

The Kolorado legislature received numerous complaints from accident victims who, in the days immediately following their accidents, had received unwelcome and occasionally misleading telephone calls on behalf of medical care providers. The callers warned of the risks of not obtaining a prompt medical evaluation to detect injuries resulting from accidents and offered free examinations to determine whether the victims had suffered any injuries. In response to these complaints, the Kolorado legislature passed a statute prohibiting medical care providers from soliciting any accident victim by telephone within thirty (30) days from the date of his or her accident. Which of the following is the most effective argument for Kolorado to use in defending the constitutionality of its statute? (A) Because the statute regulates commercial speech, including some speech that is misleading, the First Amendment does not limit Kolorado's power to regulate that speech. (B) Because the statute regulates only commercial speech, Kolorado need only demonstrate that the restriction is rationally related to achieving the state's legitimate interests in protecting the privacy of accident victims and in regulating the medical profession. (C) Kolorado has substantial interests in protecting the privacy of accident victims and in regulating the practice of medical care providers, and the statute is narrowly tailored to achieve Kolorado's objectives. (D) The statute is a reasonable time, place, and manner regulation.

The correct answer is (C) The statute is applicable regulates commercial speech and is applicable only to medical care providers. Thus the speech does not receive the same level of First Amendment protection as do other forms of speech. A statute that restricts commercial speech that is not false, deceptive, or illegal is valid only if it directly advances a substantial government interest and is reasonably tailored to achieve the government's objective. This choice correctly identifies this test as the one that Kolorado must pass to defend the constitutionality of its statute. Note that this answer does not guarantee that Kolorado will win. As the question asked, it simply identifies the best argument in defense of the statute.

Spenser Susser, a radical animal rights activist, spoke at a rally in front of the corporate headquarters of LPNH, a major cosmetics firm that uses animals in testing cosmetics. Mr. Susser's speech, growing progressively louder and more impassioned, reached a climax when he said, ?We'd had enough of the cosmetics companies' promises to mend their ways. The torture must end. It must end now." The crowd started to chant, ?It must end now. It must end now." After five minutes of chanting, part of the crowd broke through the doors of the LPNH headquarters building and caused significant damage. Mr. Susser was arrested for inciting a riot. Does the First Amendment provide Mr. Susser with a defense to this charge? (A) The First Amendment does not provide Mr. Susser with a defense because speakers can be held responsible for the consequences of their actions. (B) The First Amendment does not provide Mr. Susser with a defense because the crowd engaged in violent, illegal acts shortly after he finished speaking. (C) The First Amendment provides Mr. Susser a defense because of the absence of evidence that he intended to cause a riot. (D) The First Amendment provides Mr. Susser a defense because his speech concerns political and social policy at the core of First Amendment protection.

The correct answer is (C)(Brandenburg v. Ohio, 395 U.S. 444 (1969) [1330] establishes the modern constitutional test for government restrictions on speech that incite illegal behavior. It states that the government may restrict speech inciting illegal behavior only if (1) the speaker intends to incite illegal behavior and (2) the speech is, in fact, likely to produce imminent illegal behavior. The facts in the question do not support the conclusion that Mr. Susser intended to incite his audience to riot and break into the LPNH headquarters. The abstract nature of his remarks do not suggest that Mr. Susser intended to incite an immediate riot.)

In response to a tremendous increase in panhandling in Manhattan, the city council of the City of New York enacted an ordinance that required anyone soliciting for charitable contributions of any sort in a public place to wear an identity card issued by the police department. These identity cards could be obtained free by completing an affidavit providing the applicant's identification and address information and further affirming that the applicant was not soliciting for personal use and belonged to a recognized charitable organization. Joe Buck, a member of an anti-tobacco charitable organization desires to solicit contributions from similarly minded persons for use in his organization's campaign against public smoking. Mr. Buck decides not to comply with the identity card ordinance and is arrested while soliciting contributions at Times Square. Mr. Buck asserts in his trial that the ordinance violates his First Amendment rights. What is the trial court's most likely decision? (A) The ordinance is constitutional because it represents a reasonable balancing of the city's police power interest in protecting its residents from fraud and annoyance and the right of people to seek charitable contributions. (B) The ordinance is constitutional because preventing fraud in the solicitation of charitable contributions is a compelling government interest. (C) The ordinance is unconstitutional because it violates the First Amendment's prohibition against governmental infringement of the right of free speech. (D) The ordinance is unconstitutional because it burdens religious organizations from obtaining contributions from their members, and thus interferes with the free exercise of religion.

The correct answer is (C)(The ordinance is probably unconstitutional because it violates free speech rights protected by the First Amendment. The Supreme Court has held that a charitable appeal for funds involves a variety of speech interests protected by the First Amendment. In one case, the Court struck down an ordinance that prohibited door-to-door solicitation by organizations that did not use 75% of their receipts for charitable purposes. The ordinance in this question would probably be struck down for the same reason because it prohibits all charitable solicitation absent a relatively burdensome compliance with its registration provisions. The ordinance is also vulnerable because it limits the right of solicitation to those who belong to a recognized charitable organization.")

Edward Cole is suffering from a form of cancer for which there is no proven cure. For the past few months, he has been using a new experimental drug developed by a French company, but the drug has not been approved by the United States Food and Drug Administration (FDA). Mr. Cole and his physician have request permission to start a clinical trial for the drug, but the FDA has refused because of the lack of substantial proof of its efficacy or safety. Mr. Cole has now been indicted under a State of Palabama law, enacted to protect public health and safety, that makes it a crime to use any medication that has not been approved by the FDA. Mr. Cole asserts that this criminal prosecution violates his constitutionally protect right to privacy and personal autonomy. What is the probable outcome of Mr. Cole's challenge? (A) Mr. Cole will prevail because Palabama lacks a compelling governmental interest sufficient to overcome his liberty interest in choosing his own medical treatment. (B) Mr. Cole will prevail because Palabama's statute is more burdensome on him than necessary to protect public health and safety. (C) The court will uphold Palabama's statute because states may exercise their police power to protect the health and safety of their citizens where there is no way to be sure that a drug will not cause serious harm or death to those who use it. (D) The court will uphold Palabama's statue because the United States Constitution does not protect a person's right to choose his or her own medical treatment.

The correct answer is (C). (Even if the court recognizes a person's fundamental right concerning what medical treatment he or she desires to receive, the court must still decide whether the state has adequate grounds for interfering with that right. The state will point to its compelling interest in protecting the health and safety of its citizens, particularly in circumstances where there is no way to know what the drug will cause death or serious harm. In United States v. Rutherford, 442 U.S. 544 (1979), the United States Supreme Court found that the FDA had not infringed a terminally ill patient constitutionally protected privacy interests by declining to approve the use of Laetrile, a cancer drug that had not yet been shown to be safe and effective.)

To assure that all children in the state receive an appropriate education, the Pansas state legislature enacted a statute requiring that all children under the age of 16 must attend either public or private school. The statute does not permit home schooling. The refusal by a parent or parents to send a child to public or private school is punishable as a misdemeanor. Eddie and Catherine Johnson reside in Pansas and have been home schooling Ruby Sue, their eight-year-old daughter for four years. When they refuse to send Ruby Sue to public or private school, Pansas charges them with a misdemeanor under the statute. The Johnsons defend on the ground that the statute in question is unconstitutional as applied to them. In light of the nature of the rights involved, which of the following is the most probable burden of persuasion on this constitutional issue? (A) The Johnsons have the burden of persuading the court that the application of the Pansas statute to them is not necessary to vindicate a compelling state interest. (B) The Johnsons have the burden of persuading the court that the application of the Pansas statute to them is not rationally related to a legitimate state interest. (C) The State of Pansas has the burden of persuading the court that the application of its statute to the Johnsons is necessary to vindicate a compelling state interest. (D) The State of Pansas has the burden of persuading the court that the application of its statute to the Johnsons is rationally related to a legitimate state interest.

The correct answer is (C). (If a law burdens a fundamental right, the state must demonstrate that the law is necessary to promote a compelling state interest (that is, strict scrutiny will apply). In all other cases not involving fundamental rights , the "rational basis" test applies which means that the law is valid if it rationally relates to a legitimate government interest. These laws are presumed constitutional; therefore, the burden is on the party challenging the statute to pursue its invalidity. Parents have a fundamental right to manage the upbringing of their children free from unnecessary government interference. This right includes the oversight of their children's education. Because the Pansas statute interferes with this fundamental right, strict scrutiny applies, and Pansas has the burden of showing that its statute is necessary to promote a compelling state interest.)

Louie Kritski, the executive director of an equal housing opportunity organization, was the leader of a sit-in at the offices of the Ephron Property Management Company. The protest was designed to call attention to the company's racially discriminatory rental practices. When the police demanded that Mr. Kritski desist from trespassing on the Ephron's private property, he refused and was arrested. In his trial for trespass, the prosecution peremptorily excused all non-whites from the jury, arguing to the court that even though Mr. Kritski is white, minority groups would support him because of his fight against racism in housing accommodations. If Mr. Kritski is convicted by an all-white jury and appeals, claiming a violation of his constitutional rights, the appellate court should: (A) Affirm the conviction because Mr. Kritski was not a member of the class discriminated against. (B) Affirm the conviction because peremptory challenges of the non-whites did not deny Mr. Kritski the right to an impartial jury. (C) Reverse the conviction because racially based peremptory challenges violate equal protection of the law. (D) Reverse the conviction because Mr. Kritski was denied the right to have his case hear by a fair cross-section of the community.

The correct answer is (C). (The prosecution's dismissal of jurors solely on racial grounds violates Mr. Kritski's equal protection rights. A state may not permit litigants (including litigants who are state actors, such as prosecutors) to exclude jurors solely on racial grounds. This constitutes a violation of the other litigant's and the challenged jurors' equal protection rights. See Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) [559 & 760]. This is particularly true when the exclusion is based on the reasoning that ?the jurors would decide the case solely on racial considerations," as the prosecution is claiming here.)

The State of Delaho prohibits publication of the identity of victims of sexual crimes but allows trials of such cases to be broadcasted as long as the victim's face is blocked out. Recently, Charles Foster Kane, the nephew of one of Delaho's United States Senators, was accused of raping a woman at his family's estate in Delaho. Because of the notoriety of the senator's family, the media was eager to share all aspects of the case with the public. Jedediah Leland, an investigative reporter for the Delaho Daily Inquirer, discovered the name of Mr. Kane's victim from a police report that inadvertently included the victim's name. The Daily Inquirer published the victim's identity in the next edition of the paper. Mr. Leland and the Daily Inquirer were fined $2,500 for violating the statute. If Mr. Leland and the Daily Inquirer challenge the fine, how should the court rule? (A) The court should uphold the fine because Delaho has a compelling interest in protecting the privacy of its citizens. (B) The court should uphold the fine because inclusion of the victim's identity in the police report was inadvertent. (C) The court should reverse the fine because Delaho does not have a compelling interest in prohibiting the dissemination of the lawfully obtained information described in this question. (D) The court should reverse the fine because the First Amendment allows the media to publish any information that it lawfully obtains.

The correct answer is (C). The Constitution prohibits Congress and the states from abridging the freedom of the press. While this freedom is no greater than the freedom of speech granted to all citizens, the information here printed by the Daily Inquirer is protected. The media may not be punished for publishing a true fact once it is lawfully obtained from public records or is otherwise released to the public. It does not matter that the release of the information was inadvertent. See Florida Star v. B.J.F., 491 U.S. 594 (1989) [1478].

Howard Beale, an investigative reporter employed by the UBS Television Network, is researching a quickly developing high profile case involving a political scandal. He had a well-founded suspicion that Max Shumacher, a presidential candidate, had procured the murder of one of his primary opponents. Acting on this well-founded and reasonable suspicion, Mr. Beale climbed over a fence surrounding Mr. Schumacher's vacation home and looked through the windows. He saw a knife which appeared to be covered with blood, on the floor of the kitchen. Mr. Beale knocked on the front door of the home. When he discovered that the door was unlocked, Mr. Beale entered the house and took a photograph of the knife. Based on Mr. Beale's work, the UBS Television Network aired a story accusing Mr. Schumacher of murder. The broadcast included the photograph of the knife. Mr. Schumacher complained to the police when he saw the story. The police arrested Mr. Beale and charged him with trespass. Mr. Beale sought dismissal of the trespass charge on the ground that his conduct and UBS Television Network's airing of the story is a violation of the First Amendment's protections of speech and press. How should the court rule? (A) Mr. Beale will likely prevail because the First Amendment protects the press from liability resulting from generally applicable laws when a reporter has a well-founded suspicion that a news story concerns criminal activity. (B) Mr. Beale will likely prevail because Mr. Schumacher, as a public official, has no reasonable expectation of privacy regarding the bloody knife. (C) Mr. Beale will not likely prevail because the First Amendment generally will not protect the press from liability resulting from generally applicable laws not directed at the suppression of free speech. (D) Mr. Beale will not likely prevail because the First Amendment provides less protection of digital or broadcast speech than it does for other forms of speech.

The correct answer is (C). The First Amendment will not protect the press from liability based on generally applicable laws not directed at the suppression of free speech. The Court has stated that ?generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news . . . . [E]nforcement of such general laws against the press is not subject to stricter scrutiny that would be applied to enforcement against other persons or organizations." Cohen v. Cowles Media Co., 501 U.S. 663 (1991) [1642]. Because the trespass law is generally applicable and not directed at the suppression of speech, Mr. Beale's First Amendment claims must fail.

To encourage minority business and to foster pride in minority heritage, the State of Franklin enacted legislation exempting magazines and other periodicals from the state's gross receipts tax if 20% of the magazine is devoted to articles concerning minorities. The legislation created a commission to sample magazines to determine on an annual basis whether they qualified for the exemption. Maxine Mercy is the publisher of a sports magazine named the Baseball Diamond Gazette that occasionally prints articles about minority athletes. She applied for the tax exemption, but the commission determined that the magazine's content did not satisfy the statutory minimum content requirement. After paying the tax assessed on her magazine, Ms. Mercy filed suit for a refund on the ground that the exemption statute was unconstitutional. How will the court probably rule? (A) The court will rule against Maxine Mercy because taxpayers do not have standing to challenge the constitutionality of tax exemptions. (B) The court will rule against Maxine Mercy because Franklin has a compelling interest in encouraging minority businesses. (C) The court will rule in favor of Maxine Mercy because the tax exemtion violates the First Amendment freedoms of speech and press. (D) The court will rule in favor of Maxine Mercy because the tax violates the Equal Protection Clause.

The correct answer is (C). The court should rule in favor of Maxine Mercy because the tax exemption regulates speech based on its content in violation of the First Amendment. The freedom of the press is guaranteed by the First Amendment. This freedom does not prohibit all government regulation of the press, but it does place limits on those regulations. The media can be subject to general business regulations and taxes, but generally cannot be singled out for a special tax. In addition, a tax impacting on the media, or a subpart of the media, cannot be based on the content of the publication in the absence of a compelling government interest. While this tax appears to be a general gross receipts tax, the exemption triggers strict First Amendment scrutiny because it is based on content. Thus, the State of Franklin must demonstrate that the exemption furthers a compelling government interest and that it is narrowly tailored to further that interest. While remedying the effects of past discrimination against a minority group may be considered a compelling interest, the facts in this question do not provide a basis for finding that the purpose of Franklin's statute was to remedy past discrimination. Therefore, based on the facts in the question, Maxine Mercy prevails.

Allen Beane, an astronomer who had studied the moon for more than thirty years, became convinced that the moon began sending him messages revealing how to achieve an afterlife. Mr. Beane created a website where he shared the secrets that the moon had revealed to him. Warner vonBrown, a wealthy follower of Mr. Beane, funded the construction of an observatory in the State of Fremont to serve as the national headquarters for Mr. Beane and his followers. Mr. Beane continued to study the moon from the observatory and held weekly meetings at the observatory at which he revealed the continuing messages he had received from the moon. Some followers attended the meetings regularly, and some watched the meetings using an internet feed. After receiving his first property tax bill for the observatory, Mr. Beane applied for a state property tax exemption that was available for houses of worship. After conducting an investigation, the Fremont Department of Revenue declined to grant the observatory tax-exempt status. Mr. Beane filed suit to overturn the denial. Fremont moved for a summary judgment arguing that the exemption is available only for houses of worship and that, because Mr. Beane and his followers do not belong to a recognized religion, the observatory is not eligible for a tax exemption as a matter of law. How should the court rule of Fremont's motion? (A) Grant the motion because Mr. Beane and his followers are not members of a recognized religion. (B) Grant the motion because the exemption is a law of general application, and such laws need not include religious exemptions. (C) Deny the motion because Mr. Beane should be allowed to prove whether his beliefs occupy a place in his life parallel to that occupied by orthodox religious beliefs. (D) Deny the motion because the court cannot question a person's religious beliefs.

The correct answer is (C). This question could be categorized as an Establishment Clause question with a sect preference because Fremont is preferring ?recognized" religious sects over others. However, before addressing that question, the question of whether Mr. Beane's beliefs are a religion at all must be addressed. That question implicates the Free Exercise Clause. The Free Exercise Clause restricts government interference with the free exercise of religion and strongly protects religious beliefs. The government may not punish religious beliefs unless doing so is necessary to achieve a compelling government interest. Thus, if Mr. Beane's beliefs are religious, Fremont probably cannot discriminate against them merely because they are not shared by a recognized religion. Option (C) is the only one that would address whether Mr. Beane's beliefs are religious. See United States v. Seeger, 380 U.S. 163 (1965) [1669].

In 1963, the State of Malbolgia enacted a generally applicable statute that requires an autopsy by the county coroner in all cases of death that are not obviously of natural causes. The purpose of this law is to ensure the discovery and prosecution of all illegal activity resulting in death. This law has been consistently enforced during the six decades since it passage. Mr. and Ms. Oswald are sincere practicing members of a religion that maintains it is essential for a deceased person's body to be buried promptly and without invasive procedures, including an autopsy. When the Oswalds' 25-year-old daughter, Clara Oswald, died of mysterious causes and an autopsy was scheduled, the Oswalds file an action in a Malbolgia state court challenging the constitutionality of the autopsy statute and seeking an injunction prohibiting the county coroner from performing an autopsy on their daughter's body. The Oswalds claim only that the application of the statute in the circumstances of their daughter's death violates their right under the Free Exercise Clause of the First Amendment. With the assumption that no federal statutes are implicated, how should the court rule on the constitutionality of Malbolgia statute? (A) The court should find that the statute is unconstitutional because it is not necessary to vindicate a compelling government interest. (B) The court should find that the statute is unconstitutional because it is not substantially related to an important government purpose. (C) The court should find that the statute is constitutional because a dead individual is not a person protected by the Due Process Clause of the Fourteenth Amendment. (D) The court should find that the statute is constitutional because it is a generally applicable statute; it is rationally related to a legitimate government purpose; and it does not reflect deliberate regulation of religious conduct.

The correct answer is (D) The current test for evaluating government restrictions on the free exercise of religion is found in Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990) [1681]. The C0urt held that the Free Exercise Clause is not implicated by a neutral law of general application that is not specifically and deliberately directed at the suppression of a religious practice.

In 1934, the Veterans of Foreign Wars, a group of private citizens, constructed a Latin cross made of wood on the top of Sunrise Rock in the portion of the Mojave National Preserve owned by the State of California. The purpose of the cross was to honor the American soldiers who died in World War One. The California Bureau of Land Management has never maintained or repaired the cross. While the original cross no longer exists, it has been replaced over the years by private groups and individuals. The current cross, built in 1998 by a private citizen named Henry Sandoz, is constructed of metal pipes painted white and is approximately eight feet tall. While the cross cannot be seen from the nearest highway which is ten miles away, it is visible from a narrow blacktop road that comes within 100 feet of Sunrise Rock. Frank Buono, a retired California BLM employee, who makes regular visits to the Preserve, filed suit in federal court stating that he was offended by the presence of a religious symbol on government land and alleging that the cross violated the Establishment Clause. How will the court probably rule on Mr. Buono's Establishment Clause claim? (A) The court will probably hold that the presence of the cross on property owned and managed by the State of California violates the Establishment Clause because it excessively entangles the government with religion. (B) The court will probably hold that the presence of the cross on property owned and managed by the State of California violates the Establishment Clause because it elevates Christianity over other faiths and religion over non- religion. (C) The court will probably hold that the presence of the cross on property owned and managed by the State of California does not violate the Establishment Clause because the Establishment Clause applies only to Congress and does not apply to the States. (D) The court will probably hold that the presence of the cross on property owned and managed by the State of California does not violate the Establishment Clause because of the lack of evidence to rebut the presumption of constitutionality for longstanding monuments.

The correct answer is (D) When longstanding monuments, symbols, and practices face an Establishment Clause challenge, the Court no longer employs the Lemon v. Kurtzman test. Even though a long-standing monument may have had a religious origin, it may also have taken on a secular, historical meaning. Thus, the Court now recognizes a presumption in favor of longstanding monuments, symbols, and practices. American Legion v. American Humanist Association, 588 U.S. ___, 139 S. Ct. 2067 (2019). Here, the monument was erected for a secular purpose - to honor the soldiers who died in World War I. The State of California did not erect or maintain the cross, and given its remote location, it is unlikely that the State of California could reasonably be perceived as endorsing Christianity. Removing the cross at this late date could be perceived as an act manifesting hostility toward religion which, in its own right, could be considered an Establishment Clause violation.

Anse Hatfield disliked his neighbors, Randall and Roseanna McCoy, who were of a different race. One night, intending to frighten the McCoys, Mr. Hatfield spray-painted their house with racial epithets and threats that they would be lynched. He was arrested and prosecuted under a state statute providing that ?any person who threatens violence against another person with the intent to cause that person to fear for his or her life or safety may be imprisoned for up to five years." In defense, Mr. Hatfield claimed that he did not intend to lynch the McCoys, but only to scare them so that they would move away. Can Mr. Hatfield constitutionally be convicted under this law? (A) No, because Mr. Hatfield was only communicating his views and had not commenced any overt action against the McCoys. (B) No, because Mr. Hatfield testified that he did not intend to actually lynch the McCoys. (C) Yes, because Mr. Hatfield's communication was racially motivated and thus violated the Thirteenth Amendment. (D.) Yes, because Mr. Hatfield's communication was a threat by which he intended to intimidate the McCoys.

The correct answer is (D) because intimidation is not protected speech. Valid restrictions on the content of speech must be narrowly tailored to promote a compelling governmental interest. Speech intended to intimidate the person who is the target of the words is one of the few categories of speech that do not receive First Amendment protection whether nor not the speaker intends to carry out the threats. In Virginia v. Black, 538 U.S. 343 (2003) [1357], the Court upheld a statute that prohibited cross burning with the intent to intimidate. Although burning a cross could be considered a form of symbolic speech, the intent to intimidate another renders it a ?true threat," even if the individual burning the cross does not actually intend to harm the person he or she is intimidating.

The Texona legislature is concerned that the numerous and strident television, radio, newspaper, and digital advertisements by automobile dealerships annoy and mislead the public. After conducting extensive public hearings, the legislature enacts comprehensive legislation regulating the timing and content of such advertisements, limiting their duration, frequency, and the types of claims and information made and given. On behalf of its members, the Texona Automotive Alliance, filed suit in federal court claiming that the statute regulating its members' advertisements violates the First Amendment. How is the federal court likely to rule? (A) The statute is unconstitutional because it infringes on the automobile dealerships' free speech rights protected by the First Amendment. (B) The statute is unconstitutional because it infringes on the rights of automobile dealers to enter into contracts for advertising. (C) The statute is constitutional because it is within the police power of the state, and no federal rights are infringed. (D) The statute is constitutional because it does not prohibit the dissemination of truthful information about price and availability of motor vehicles and is narrowly tailored to serve a substantial government interest.

The correct answer is (D) because it most accurately reflects the balance between the scope of First Amendment protection for the dissemination of truthful commercial speech and the government's ability to enact narrowly drawn regulations to advance substantial governmental interests. Although commercial speech is protected by the First Amendment, it is subject to significant regulation. A state may outlaw commercial speech that proposes an unlawful transaction or that is misleading or fraudulent. If commercial speech concerns a lawful activity and is not misleading or fraudulent, the government regulation, to be valid, must directly advance a substantial government interest and must be no more extensive than necessary to serve that interest. The regulation must also be narrowly drawn, and there must be a reasonable fit between the legislation's end and the means chosen.

After a hotly contested local election in which charges of electoral fraud were made, Elizabeth Turner led a protest rally at the steps of the city council building, She made an impassioned speech having as its theme the constant refrain, ?The doors of government have been closed! We must open them again!" Following speech, Ms. Turner ceremoniously took out her voter registration card and burned it to protest the alleged electoral fraud which she claimed occurred. That action, in addition to her speech, energized the crowed to start chanting, ?Let us in!" After five minutes of this chanting, a protester broke down the door of the city council building, and a group of protesters rushed into the building and destroyed a large amount of city property. After she was charged with inciting a riot, Ms. Turner claimed that her speech and conduct were protected by the First Amendment and moved to dismiss the charge. How should the court rule? (A) The First Amendment does not provide Ms. Turner a defense because any speech advocating illegal activity is not constitutionally protected. (B) The First Amendment does not provide Ms. Turner a defense because violence was likely in the circumstances surrounding Ms. Turner's speech. (C) The First Amendment provides Ms. Turner a defense because she has a right to burn her voter registration card. (D) The First Amendment provides Ms. Turner a defense because of the absence of evidence that she intended to cause a riot or any other illegal activity.

The correct answer is (D)(Brandenburg v. Ohio, 395 U.S. 444 (1969) [1330] limits the government's ability to proscribe speech as an incitement to illegal action to circumstances where the speaker intended to incite imminent lawless action. The facts do not supply evidence that Ms. Turner intended to promote imminent lawless action. The rhetorical nature of Ms. Turner's comments and the absence of any direct encouragement to the crowd to commit illegal acts undercut a finding of the intent required by Brandenburg.)

Under State of Moregon law, persons who were residents of Moregon when they graduated from high school were entitled to free tuition at Moregon State University (MSU). Ben Braddock is twenty-five years old and has been a resident of Moregon for the last six years. He was admitted to MSU but was also advised that he must pay $10,000 per year in tuition because he graduated from high school he was a resident of the State of Lidaho. Mr. Braddock has filed suit in federal court challenging Moregon's tuition policy under the Equal Protection Clause of the Fourteenth Amendment. What is the most likely outcome of Mr. Braddock's claim? (A) The court will uphold Moregon's tuition policy serves Moregon's important state interest in educating its residents. (B) The court will uphold Moregon's tuition policy because durational residency requirements do not violate the Equal Protection Clause's protection of the right to travel. (C) The court will invalidate Moregon's tuition policy because fixed-date residency requirements are subject to strict scrutiny. (D) The court will invalidate Moregon's tuition policy because it penalizes Mr. Braddock's right to travel.

The correct answer is (D)(Moregon's tuition policy involves a fixed-point residency requirement because the eligibility for free tuition depends upon whether the student was a resident of Moregon at a fixed point in his or her life - high school graduation. The effect of this policy is to discriminate against newer residents of the state by permanently relegating them to a status inferior to older residents. Mr. Braddock will never qualify for free tuition. The permanency of the disqualification will give the court a basis to decide that Moregon's tuition policy penalizes Mr. Braddock's right to travel.)

The state legislature of Nohio, alarmed by the 50% increase in the state's divorce rate during the past ten years, enacted legislation requiring applicants for marriage licenses to be interviewed by a state psychologist to determine their compatibility and to evaluate the likelihood of their success in a marriage. Ted Kramer and Joanna Stern applied for a marriage license, but their application was denied after Dustin Streep, the clinical psychologist who conducted their interview, determined that they had an 80% chance of divorce with five years. Mr. Kramer and Ms. Stern desire to file suit in federal court challenging Nohio's statute. On what basis will the couple prevail? (A) If they can prove that the Nohio statute is not rationally related to a legitimate state purpose. (B) If Nohio fails to prove that its statute is substantially related to an important government interest. (C) If they can prove that the Nohio statute is not necessary to effectuate a compelling state interest. (D) If Nohio fails to prove that its statute is necessary to effectuate a compelling state interest.

The correct answer is (D). (The couple will prevail if Nohio fails to meet its burden of proof. The Court uses the strict scrutiny standard when a suspect classification or fundamental right is involved, and the Court imposes on the government the burden of proving that the challenged law is necessary. Because Nohio's statute affects the couple's fundamental right of privacy in marriage and family matters, Nohio must show that its law is necessary to effectuate a compelling state interest.)

St. John, Minnesota has approximately 300,000 residents. Approximately 50% of these residents are members of a recognized racial minority. The latest census figures indicate that 33,501 of St. John's minority residents could be classified as ?poor" under federal poverty guidelines. In contrast, only 7,328 of the approximately 150,000 non- minority residents could be classified as ?poor." To combat a budget deficit, St. John's 10- member city council, which included no minority member and no poor members, decided to raise bus fares during rush hour periods from 80 cents to $1. Because poor persons and members of minority groups place greater reliance on the city's bus lines than to the bulk of the non-poor and non-minority population (many of whom drive to work), the effect of the transit fare increase was hardest on the poor and minority communities. Several activist groups representing the poor and some community action coalitions have vowed to fight the fare increase in federal court. Which of the following statements most accurately describes the constitutional status of the fare increase? (A) The fare increase is unconstitutional because the city council is composed solely of non-poor and non-minority members who cannot adequately represent the interests of poor and minority persons who need low bus fares to survive. (B) The fare increase is unconstitutional because the city cannot show that the resulting disparate impact of the fare increase is necessary to advance a compelling government interest. (C) The fare increase is constitutional because a political question is involved, and fares and fees may be increased if the city council deems such increases appropriate to cure deficits. (D) The fare increase is constitutional because there is no evidence that the city council acted irrationally or was motivated by an intent to discriminate on the basis of race.

The correct answer is (D). (The fare increase probably will be upheld because the action under by the city council will not require strict scrutiny. The Equal Protection Clause of the Fourteenth Amendment prohibits states and local governments from denying persons equal protection of the law. A potential equal protection issue is raised whenever a law treats certain classes of people differently from others. If the governmental action classifies persons based on a suspect classification such as race, the strict scrutiny standard will be applied, and the action will be struck down unless the government proves that the action is necessary to achieve a compelling interest. On the other hand, most classifications, including those based on income level, are reviewed under the rational basis standard. Under this standard, classifications will be upheld unless they bear no rational relationship to any conceivable legitimate government interest. The fare increase could be challenged on the ground that a suspect classification (race) is involved. However, the mere fact that a government action has a discriminatory effect is not sufficient to trigger strict scrutiny. There must also be intent to discriminate on the part of the government. When a law is not discriminatory on its face and is not applied in a discriminatory manner, a suspect classification will be found only if the lawmaking body enacted or maintained the law for a discriminatory purpose. While statistical evidence is admissible to prove that a law has a disproportionate impact on one class of persons, such evidence is almost never sufficient by itself to prove that the government had a discriminatory purpose in passing the law. In this question, the fare increase does not discriminate on its face and is not applied just to some classes of bus riders and not others. While the fare increase has a disproportionate on members of a minority group because they rely more heavily on the bus lines, there is no evidence that the increase was motivated by any other purpose than eliminating the operating deficit of the bus lines. Therefore, the fare increase will not be found to involve a suspect classification based on race. The other group for which the fare increase creates a disproportionate impact is the poor. However, the Court has never held that wealth alone is a suspect classification. Unless a governmentally required fee deprives a person of a fundamental constitutional right, it will be judged under the rational basis standard (i.e., it will be upheld if it is rationally related to a legitimate government interest). Here, the fare increase does not deprive poor persons of any fundamental right, and it is rationally related to the legitimate purpose of reducing the operating deficit of the bus system. Therefore, the fare increase will be found to be constitutional.)

To foster an environment conducive to learning, the Williamstown County School Board enacted a dress code that prohibited all public high school students from wearing in school shorts cut above the knee. Because female high school students considered it unfashionable to wear shorts cut at or below the knee, they no longer wore shorts to school. On the other hand, male high school students regularly wore shorts cut at or below the knee because they considered such shorts fashionable. Karen Calrissian, on behalf of herself and other female high school students, filed suit in the United States District Court on the ground that dress code denied them the equal protection of the law. How should the District Court decide the case? (A) The District Court should hold that the dress code violates the Equal Protection Clause because it is not necessary to further a compelling government interest. (B) The District Court should hold that the dress code violates the Equal Protection Clause because it is not substantially related to an important government interest. (C) The District Court should uphold the dress code because it is narrowly tailored to further an important government interest. (D) The District Court should uphold the dress code because it is rationally related to a legitimate state interest.

The correct answer is (D). (The proper test in this case is the rational basis test because the dress code does not involve a suspect classification or infringe on a fundamental constitutional right. There are no facts suggesting that the purpose of the dress code was to discriminate against females. Using the rational basis test, the courts should uphold a government regulation if there is any rational basis to support it. Fostering an environment conducive to learning is a legitimate government interest, and it was reasonable for the school board to decide that the dress code requirement would further that interest.)

To prevent automobile accidents, the State of Texona enacted a statute limiting the use of digital billboards that periodically change messages. The statute prohibits the use of these billboards on any street within the state with a speed limit of 40 miles per hour or more. Landmark Outdoor Media, a national billboard company, owns more than 200 billboards in Texona that will be affected by the statute. Each of these billboards carries three to four advertisements that change every two minutes. Landmark has contracts with various advertisers for each of the billboards ranging in length from 30 days to one year. If the statute is enforced against Landmark, it will be able to carry only one advertisement on each digital billboard. As a result, it will be forced to cancel contracts with some advertisers and will experience a reduction in income. In a previous lawsuit involving Landmark, the United States Supreme Court decided that all of the advertisements shown on Landmark's billboards involve lawful activities and that none are misleading. Moreover, the Court has found that preventing automobile accidents is an important government interest. Landmark has filed suit in federal court claiming that Texona's statute is unconstitutional as applied to its digital billboards. How will the court probably rule? (A) The court should rule for Landmark because the billboards advertise lawful activities, and the advertisements are not misleading. (B) The court should rule for Landmark because the statute substantially impairs existing contract rights. (C) The court should uphold Texona's statute because the states may regulate speech activities under their police power, as long as the regulation is not content-based. (D) The court should uphold Texona's statute because it is content-neutral, is narrowly tailored to serve an important government interest, and leave open alternative channels of communication.

The correct answer is (D). Texona's statute is a valid time, place, and manner restriction. To avoid strict scrutiny and to be upheld, a government regulation on time, place, or manner of speech in a public forum must: (1) be content neutral, (2) be narrowly tailored to serve and important government interest, and (3) leave open alternative channels of communication. Texona's statute does not differentiate based on content of the advertisements on the billboard. The facts state that the prevention of accidents has been found to be an important government interest. Moreover, the statute appears to be narrowly tailored to serving the interest as it applies only to streets where speed limits are relative high and accidents would be more dangerous. Finally, the statute leaves open alternative channels of communication, i.e., non-changing billboards, billboards on streets with lower speed limits, other types of advertising media, etc.

Johnny Blaze is a professional motorcycle daredevil. He put on a performance in a privately owned stadium during which he intended to leap his motorcycle over 21 automobiles. Spectators were charged $100 to view the jump and were strictly prohibited from using audio or video recording devices during the performance. Roxanne Simpson purchased a ticket and attended this performance. Mr. Blaze's motorcycle stalled as it was leaving the ramp and exploded into flames when it landed short of the mark. Ms. Simpson recorded the crash using the camera on her mobile phone. She contacted KGMB, a local television station, and offered to share her recording of Mr. Blaze's spectacular crash. The television station obtained the recording and aired it on its evening news show. Mr. Blaze filed suit to recover damages from KGMB for broadcasting the admittedly unauthorized recording of his act. KGMB filed a motion to dismiss raising only constitutional defenses. How should the court rule? (A) The court should deny KGMB's motion to dismiss because broadcasting this recording deprived Mr. Blaze of a property right without due process. (B) The court should deny KGMB's motion to dismiss because broadcasting this recording deprived Mr. Blaze of the commercial value of his performance. (C) The court should grant KGMB's motion to dismiss because news broadcasts are absolutely protected by the First Amendment. (D) The Court should grant KGMB's motion to dismiss because the First Amendment authorizes media coverage of newsworthy events.

The correct answer is (D). The First Amendment gives the media a privilege to cover and report on newsworthy events. Publication of newsworthy events of public interest does not ordinarily infringe upon an individual's right of publicity. The video here focused on Mr. Blaze's accident. KGMB's broadcast was not intended to appropriate the commercial value of Mr. Blaze's name or likeness but rather to report a news story. In addition, KGMB played no role in recording the Mr. Blaze's accident and obtained it legally.

Hutch Mansell is a private citizen living in a gated community in the suburbs of Atlanta. He works as an accountant for a company headquartered in Atlanta. One day during his lunch hour, Mr. Mansell is approached on the street by Will McAvoy, a reporter for Atlantis Cable News who invites him to comment about Atlanta's rising crime rate and the safety of pedestrians in Atlanta. Mr. McAvoy records Mr. Mansell's comments and broadcasts them on the evening news along with some very derogatory comments about Mr. Mansell. Mr. Mansell sued Atlantis Cable News and Mr. McAvoy for defamation and requested actual and punitive damages. It was undisputed at trial that Mr. McAvoy's statements about Mr. Mansell were false and that his statements involved a matter of public concern. The evidence also demonstrated that Mr. McAvoy acted negligently in his on-air statements about Mr. Mansell. Which of the following statements is correct? (A) Mr. Mansell can recover punitive damages from the defendants because Mr. McAvoy's on-air statements about him were negligently made. (B) Mr. Mansell cannot recover punitive damages on these facts. (C) Atlantis Cable News and Mr. McAvoy will not be found to have defamed Mr. Mansell because Mr. McAvoy's statement was not made with actual malice. (D) Atlantis Cable News and Mr. McAvoy will not be found liable because Mr. Mansell has failed to present clear and convincing evidence to support his defamation claims.

The correct answer is B. To prevail in a defamation action, a private figure must prove that the defendant(s) made a false statement and that the statement was at least negligently made. If the subject of the defamatory statement involves a matter of public concern, the private figure may not recover punitive damages without proving that the defendant(s) made the statement with actual malice. Gertz v. Welch, 418 U.S. 323, 347 (1974) [1462]. In this question, Mr. Mansell is a private person, and his statements involved a matter of public concern. Based on the evidence that Mr. McAvoy acted negligently, Mr. Mansell will be entitled to recover actual damages but will not be entitled to recover punitive damages because he failed to prove that Mr. McAvoy and Atlantis Cable News statements about him were made with actual malice.

Whispering Glades is a city-owned cemetery. A city ordinance requires the operation of the cemetery to be supported primarily by revenues derived from the sale of cemetery plots to individuals. The ordinance further provides that the purchase of a cemetery plot entitles the owner to perpetual care of the plot, and also entitles the owner to erect on the plot, at the owner's expense, a memorial monument or marker of the owner's choice, subject to certain size restrictions. The ordinance requires the city to maintain the cemetery, including mowing the grass, watering flowers, and plowing snow. The ordinance permits the use of city tax funds for such maintenance if the revenues from the sale of cemetery lots are insufficient. Although cemetery lots are sold at full fair market value, which includes the current cost of perpetual care, the revenue from the sale of lots has not been sufficient in recent years to maintain the cemetery. As a result, a small amount of city tax funds have also been used for that purpose. A group of city taxpayers sued the city challenging the constitutionality of the city ordinance insofar as it permits the owner of a cemetery plot to erect a religious memorial or monument on his or her plot and permits public funds to be used to maintain the plots and memorials. If the District Court applies the Lemon v. Kurtzman test, how will the court probably rule? (A) The court will probably uphold the ordinance because only a small amount of city tax funds has been used to maintain the cemetery. (B) The court will probably uphold the ordinance because its purpose is entirely secular, it neither advances nor inhibits religion, and it does not foster an excessive entanglement with religion. (C) The court will probably find the ordinance unconstitutional because city maintenance of any religious object is a violation of the Establishment Clause. (D) The court will probably find the ordinance unconstitutional because no compelling governmental interest justifies authorizing private persons to erect religious monuments or markers in a city-owned cemetery

The correct choice is (B) because it correctly states the three-part Lemon v. Kurtzman test for government action that is alleged to benefit some religious interest. Based on the facts in the question, the ordinance passes all three parts of the test. There is no evidence that the city's decision to operate the cemetery under these rules was intended to benefit religious groups. The primary effect of the cemetery operation is not to benefit those who put religious monuments on their plot. The city's work in maintaining the religious monuments is so incidental to the overall operation of the cemetery and so comparable to the work needed to maintain the non-religious monuments that there is no excessive entanglement between government and religion.

The State of Nontana has historically allowed access to judicial records by the public and the press. However, Nontana recently enacted a statute providing for the closure of judicial records of all persons whose charges were dropped or dismissed prior to trial or persons acquitted of a crime by a court. The purpose of the statute is to protect those persons from further publicity or embarrassment relating to the state proceedings. The statute does not prohibit the publication of such information that is in the possession of a private person. Michael Gallagher, a prominent businessman residing in Nontana, was arrested and charged with rape. Prior to trial, the district attorney announced that new information indicated that the charges against Mr. Gallagher should be dropped. The district attorney then dropped the charges without further explanation, and the records relating to the proceeding against Mr. Gallagher were closed to the public in accordance with Nontana's statute. The Nontana Standard, the only newspaper in Nontana, decided to investigate to determine why Mr. Gallagher had not been prosecuted and whether the law enforcement agencies were properly doing their duty. When it was denied access to the records relating to the charges against Mr. Gallagher, The Nontana Standard filed suit to force the opening of the records and to invalidate Nontana's closure statute on constitutional grounds. How should the court rule on the newspaper's claim that Nontana's statute was unconstitutional? (A) The court should invalidate Nontana's statute because it is not narrowly tailored and its purpose to protect a litigant's privacy does not outweigh the right of access judicial records that have historically been open to the general public and the press. (B) The court should invalidate Nontana's statute because it infringes on the press's First Amendment right to examine records. (C) The court should uphold the constitutionality of Nontana's statute because the First Amendment does not mandate the right of access to government information or sources of information within the government's control. (D) The court should uphold the constitutionality of Nontana's statute because it only prohibits access to judicial records and does not prohibit the publication of the information they contain that is in the possession of private persons.

The correct is (A). Because it recognizes that the First Amendment does not permit the government to seal judicial records that have historically been open to public inspection without a compelling government interest.